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Exhibit 10.2
REVOLVING CREDIT AGREEMENT
Dated as of _______, 2006
among
ATLAS PIPELINE HOLDINGS, L.P.,
as BORROWER
ATLAS PIPELINE PARTNERS GP, LLC
as GUARANTOR
WACHOVIA BANK, NATIONAL ASSOCIATION,
as ADMINISTRATIVE AGENT and ISSUING BANK
and
THE LENDERS SIGNATORY HERETO
WACHOVIA CAPITAL MARKETS, LLC,
SOLE LEAD ARRANGER
WACHOVIA CAPITAL MARKETS, LLC,
SOLE BOOK RUNNER
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TABLE OF CONTENTS
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ARTICLE I Definitions and Accounting
Matters.................................................................1
Section 1.01 Terms Defined
Above....................................................................1
Section 1.02 Certain Defined
Terms..................................................................1
Section 1.03 Accounting Terms
and
Determinations...................................................15
ARTICLE II
Commitments......................................................................................15
Section 2.01 Loans and
Letters of
Credit...........................................................15
Section 2.02 Borrowings,
Continuations and Conversions, Letters of
Credit..........................16
Section 2.03 Changes of
Commitments................................................................18
Section 2.04
Fees..................................................................................18
Section 2.05 Several
Obligations...................................................................19
Section 2.06
Notes.................................................................................19
Section 2.07
Prepayments...........................................................................19
Section 2.08 Assumption of
Risks...................................................................20
Section 2.09 Obligation to
Reimburse and to
Prepay.................................................20
Section 2.10 Lending
Offices.......................................................................22
ARTICLE III Payments of Principal and
Interest..............................................................22
Section 3.01 Repayment of
Loans....................................................................22
Section 3.02
Interest..............................................................................22
ARTICLE IV Payments; Pro Rata Treatment; Computations;
Etc..................................................23
Section 4.01
Payments..............................................................................23
Section 4.02 Pro Rata
Treatment....................................................................23
Section 4.03
Computations..........................................................................23
Section 4.04 Non-receipt of
Funds by the Administrative
Agent......................................24
Section 4.05 Set-off, Sharing
of Payments,
Etc.....................................................24
Section 4.06
Taxes.................................................................................25
ARTICLE V Capital
Adequacy..................................................................................27
Section 5.01 Additional
Costs......................................................................27
Section 5.02 Limitation on
LIBOR
Loans.............................................................29
Section 5.03
Illegality............................................................................29
Section 5.04 Base Rate Loans
Pursuant to Sections 5.01, 5.02 and
5.03..............................29
Section 5.05
Compensation..........................................................................29
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ARTICLE VI Conditions
Precedent.............................................................................30
Section 6.01 Initial
Funding.......................................................................30
Section 6.02 Initial and
Subsequent Loans and Letters of
Credit....................................31
Section 6.03 Certain Loans
and Letters of
Credit...................................................32
Section 6.04 Conditions
Precedent for the Benefit of
Lender........................................32
Section 6.05 No
Waiver.............................................................................32
ARTICLE VII Representations and
Warranties..................................................................32
Section 7.01 Corporate
Existence...................................................................32
Section 7.02 Financial
Condition...................................................................32
Section 7.03
Litigation............................................................................33
Section 7.04 No
Breach.............................................................................33
Section 7.05
Authority.............................................................................33
Section 7.06
Approvals.............................................................................33
Section 7.07 Use of
Loans..........................................................................33
Section 7.08
ERISA.................................................................................33
Section 7.09
Taxes.................................................................................34
Section 7.10 Titles,
etc...........................................................................35
Section 7.11 No Material
Misstatements.............................................................35
Section 7.12 Investment
Company
Act................................................................35
Section 7.13 Capitalization
of General Partner and
Subsidiaries....................................35
Section 7.14 Location of
Business and
Offices......................................................36
Section 7.15 Defaults under
Material
Agreements....................................................36
Section 7.16 Environmental
Matters.................................................................36
Section 7.17 Compliance with
Laws..................................................................37
Section 7.18
Insurance.............................................................................37
Section 7.19 Hedging
Agreements....................................................................37
Section 7.20 Restriction on
Liens..................................................................37
Section 7.21 Material
Agreements...................................................................37
Section 7.22 Relationship of
Obligors..............................................................38
Section 7.23
Solvency..............................................................................38
ARTICLE VIII Affirmative
Covenants..........................................................................38
Section 8.01 Reporting
Requirements................................................................38
Section 8.02
Litigation............................................................................40
Section 8.03 Maintenance,
Etc......................................................................40
Section 8.04 Environmental
Matters.................................................................41
Section 8.05 Further
Assurances....................................................................41
Section 8.06
Performance of
Obligations............................................................42
Section 8.07 Title
Curative........................................................................42
Section 8.08 Additional
Collateral.................................................................42
Section 8.09 Subordination of
Intercompany
Debt....................................................43
Section 8.10 Corporate
Identity....................................................................43
Section 8.11 ERISA
Information and
Compliance......................................................43
Section 8.12
Restricted/Unrestricted
Subsidiaries..................................................44
Section 8.13 Material
Agreements...................................................................44
Section 8.14
Guaranties............................................................................44
ARTICLE IX Negative
Covenants...............................................................................45
Section 9.01
Debt..................................................................................45
Section 9.02
Liens.................................................................................45
Section 9.03 Investments,
Loans and
Advances.......................................................46
Section 9.04 Dividends,
Distributions and
Redemptions..............................................47
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Section 9.05 Dispositions;
Sales and
Leasebacks....................................................47
Section 9.06 Nature of
Business....................................................................47
Section 9.07 Hedging
Agreements....................................................................47
Section 9.08 Limitation on
Leases..................................................................48
Section 9.09 Mergers,
Etc..........................................................................48
Section 9.10 Proceeds of
Notes and Letters of
Credit...............................................48
Section 9.11 ERISA
Compliance......................................................................49
Section 9.12 Sale or Discount
of
Receivables.......................................................49
Section 9.13 Interest Expense
Coverage
Ratio.......................................................49
Section 9.14 Combined
Leverage
Ratio...............................................................49
Section 9.15 Leverage
Ratio........................................................................49
Section 9.16 Environmental
Matters.................................................................49
Section 9.17 Transactions
with
Affiliates..........................................................49
Section 9.18
Subsidiaries..........................................................................50
Section 9.19 Negative Pledge
Agreements............................................................50
Section 9.20 Amendments to
Material
Agreements.....................................................50
Section 9.21 Accounting
Changes....................................................................50
ARTICLE X Events of Default;
Remedies.......................................................................50
Section 10.01 Events of
Default.....................................................................50
Section 10.02
Remedies..............................................................................52
Section 10.03
Distributions.........................................................................52
ARTICLE XI The Administrative
Agent.........................................................................53
Section 11.01 Appointment, Powers
and
Immunities....................................................53
Section 11.02 Reliance by
Administrative
Agent......................................................53
Section 11.03
Defaults..............................................................................54
Section 11.04 Rights as a
Lender....................................................................54
Section 11.05
Indemnification.......................................................................54
Section 11.06 Non-Reliance on
Administrative Agent and other
Lenders................................54
Section 11.07 Action by
Administrative
Agent........................................................55
Section 11.08 Resignation or Removal
of Administrative
Agent........................................55
Section 11.09 No Other
Duties.......................................................................55
Section 11.10 Collateral and
Guaranty
Matters.......................................................56
ARTICLE XII
Miscellaneous...................................................................................56
Section 12.01
Waiver................................................................................56
Section 12.02
Notices...............................................................................56
Section 12.03 Payment of Expenses,
Indemnities,
etc.................................................56
Section 12.04 Amendments,
Etc.......................................................................58
Section 12.05 Successors and
Assigns................................................................60
Section 12.06 Assignments and
Participations........................................................60
Section 12.07
Invalidity............................................................................62
Section 12.08
Counterparts..........................................................................62
Section 12.09 References, Use of
Word
"Including"...................................................62
Section 12.10
Survival..............................................................................63
Section 12.11
Captions..............................................................................63
Section 12.12 NO ORAL
AGREEMENTS....................................................................63
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Section 12.13 GOVERNING LAW,
SUBMISSION TO
JURISDICTION.............................................63
Section 12.14 USA PATRIOT Act
Notice................................................................64
Section 12.15
Interest..............................................................................64
Section 12.16
Confidentiality.......................................................................65
Exhibits
--------
Exhibit A
Form of Revolver Note
Exhibit B
Form of Borrowing, Continuation and Conversion Request
Exhibit C
Form of Compliance Certificate
Exhibit D
Security Instruments
Exhibit E
Form of Assignment and Assumption
Exhibit F
Form of Consent to Assignment
Exhibit G
Form of Guaranty
Schedules
---------
Schedule 6.01
Post-Closing Requirements
Schedule 6.01(e) Historical
Financial Summary
Schedule 7.03
Litigation
Schedule 7.09
Tax Obligations
Schedule 7.15
Subsidiary Interests
Schedule 7.20
Insurance
Schedule 7.21
Hedging Agreements
Schedule 7.23
Material Agreements
Schedule 7.24
Imbalances
Schedule 9.01
Debt
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<PAGE>
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT dated as of _________, 2006,
among
ATLAS PIPELINE HOLDINGS, L.P., a Delaware limited partnership (the
"BORROWER");
ATLAS PIPELINE PARTNERS GP, LLC, a Delaware limited liability
company ("APL
GENERAL PARTNER"; the Borrower and the APL General Partner are
collectively
referred to herein as the "INITIAL OBLIGORS"); each of the lenders
that is a
signatory hereto or which becomes a signatory hereto as provided in
SECTION
12.06 (individually, together with its successors and assigns, a
"LENDER," and
collectively, the "LENDERS"); WACHOVIA BANK, NATIONAL ASSOCIATION,
as
administrative agent for the Lenders (in such capacity, together
with its
successors in such capacity, the "ADMINISTRATIVE AGENT"); WACHOVIA
BANK,
NATIONAL ASSOCIATION, as issuing bank (in such capacity, together
with its
successors in such capacity, the "ISSUING BANK"); and WACHOVIA
CAPITAL MARKETS,
LLC, as sole lead arranger (in such capacity, together with its
successors in
such capacity, the "SOLE LEAD ARRANGER").
In consideration of the mutual covenants and agreements herein
contained and of the loans, extensions of credit and commitments
hereinafter
referred to, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 TERMS DEFINED ABOVE. As used in this Agreement, the
terms
"Administrative Agent," "APL General Partner," "Borrower," "Initial
Obligors,"
"Issuing Bank," "Lender," "Lenders," and "Sole Lead Arranger" and
shall have the
meanings indicated above.
Section 1.02 CERTAIN DEFINED TERMS. As used herein, the following
terms
shall have the following meanings (all terms defined in this
Article I or in
other provisions of this Agreement in the singular to have
equivalent meanings
when used in the plural, and vice versa):
ADDITIONAL COSTS shall have the meaning assigned such term in
SECTION
5.01(A).
ADJUSTED LIBOR shall mean, with respect to any LIBOR Loan, a rate
per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by
the Administrative Agent to be equal to the quotient of (i) LIBOR
for such Loan
for the Interest Period for such Loan divided by (ii) 1 minus the
Reserve
Requirement for such Loan for such Interest Period.
ADMINISTRATIVE QUESTIONNAIRE shall mean an Administrative
Questionnaire
in a form supplied by the Administrative Agent.
AFFECTED LOANS shall have the meaning assigned such term in
SECTION
5.04.
AFFILIATE of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with
such first
Person, (ii) any director or officer of such first Person or of any
Person
referred to in clause (i) above and (iii) if any Person in clause
(i) above is
an individual, any member of the immediate family (including
parents, spouse and
children) of such individual and any trust whose principal
beneficiary is such
individual or one or more members of such immediate family and any
Person who is
controlled by any such member or trust. For purposes of this
definition, any
Person which owns directly or indirectly 10% or more of the
securities having
ordinary voting power for the election of directors or other
governing body of a
corporation or 10% or more of the partnership or other ownership
interests of
any other Person (other than as a limited partner of such other
Person) will be
deemed to "control" (including, with its correlative meanings,
"controlled by"
and "under common control with") such corporation or other
Person.
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AGREEMENT shall mean this Revolving Credit Agreement, as the same
may
from time to time be further renewed, extended, amended, restated
or
supplemented.
AGGREGATE MAXIMUM REVOLVER AMOUNT at any time shall equal the sum
of
the Maximum Revolver Amounts of the Lenders (Fifty Million
Dollars
($50,000,000)), as the same may be reduced pursuant to SECTION
2.03(A).
APPLICABLE LENDING OFFICE shall mean, for each Lender and for each
Type
of Loan, the lending office of such Lender (or an Affiliate of such
Lender)
designated for such Type of Loan on the signature pages hereof or
such other
offices of such Lender (or of an Affiliate of such Lender) as such
Lender may
from time to time specify to the Administrative Agent and the
Borrower as the
office by which its Loans of such Type are to be made and
maintained.
APPLICABLE MARGIN shall mean with respect to Loans, the applicable
per
annum percentage set forth at the appropriate intersection in the
table shown
below, based on the Leverage Ratio as in effect from time to
time:
-------------------------------------------------------------------------------
LEVERAGE RATIO
APPLICABLE MARGIN
--------------------------------
LIBOR LOANS BASE
RATE
AND L/C FEES
LOANS
--------------------------------------------------------------------------------
Less than or equal to 1.50 to 1.00
2.25%
0.75%
--------------------------------------------------------------------------------
Greater than 1.50 to 1.00,
2.50%
1.00%
but less than or equal to 2.50 to 1.00
--------------------------------------------------------------------------------
Greater than 2.50 to 1.00
2.75%
1.25%
--------------------------------------------------------------------------------
Each change in the Applicable Margin resulting from a change in the
Leverage
Ratio shall take effect on the date of delivery by the Borrower to
the
Administrative Agent of notice thereof pursuant to SECTION 8.01(J).
However, if
the Borrower fails to deliver a compliance certificate when
required pursuant to
SECTION 8.01(J), then the Applicable Margin shall be set at the
highest level
until such date as the Borrower delivers such compliance
certificate to the
Administrative Agent.
APPROVED FUND shall mean any Fund that is administered or managed
by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or
an Affiliate
of an entity that administers or manages a Lender.
ASSIGNMENT AND ASSUMPTION shall mean an assignment and
assumption
entered into by a Lender and an Eligible Assignee (with the consent
of any party
whose consent is required by SECTION 12.06(B)), and accepted by
the
Administrative Agent, in substantially the form of EXHIBIT E or any
other form
approved by the Administrative Agent.
2
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ATLAS shall mean Atlas America, Inc., a Delaware corporation,
and
successor in interest to Atlas America, Inc., a Pennsylvania
corporation.
ATLAS DIRECT SUBSIDIARIES shall mean AIC, INC., a Delaware
corporation;
ATLAS AMERICA, INC., a Pennsylvania corporation; ATLAS ENERGY
CORPORATION, an
Ohio corporation; ATLAS ENERGY GROUP, INC., an Ohio Corporation;
ATLAS ENERGY
HOLDINGS, INC., a Delaware corporation, ATLAS NOBLE CORP., a
Delaware
corporation; ATLAS RESOURCES, INC., a Pennsylvania corporation;
ATLAS AMERICA
MIDCONTINENT, INC., a Pennsylvania corporation; REI; General
Partner; and
Viking.
ATLAS PIPELINE PARTNERS shall mean Atlas Pipeline Partners, L.P.,
a
Delaware limited partnership.
ATLAS PIPELINE PARTNERS CREDIT AGREEMENT shall mean the
Revolving
Credit and Term Loan Agreement dated as of April 14, 2005, as
amended through
October 13, 2005, among Atlas Pipeline Partners, certain of its
subsidiaries
party thereto, each of the lenders party thereto and Wachovia Bank,
National
Associates, as administrative agent.
AVAILABILITY shall mean, at any time, (i) the Lenders'
aggregate
Revolver Commitments, minus (ii) the sum of (a) the Effective
Amount of all
outstanding Loans and (b) the Effective Amount of all LC
Exposure.
BASE RATE shall mean, with respect to any Base Rate Loan, for any
day,
a rate per annum equal to the higher of (i) the Federal Funds Rate
for any such
day plus (1)/2 of 1% or (ii) the Prime Rate for such day. Each
change in any
interest rate provided for herein based upon the Base Rate
resulting from a
change in the Base Rate shall take effect at the time of such
change in the Base
Rate.
BASE RATE LOANS shall mean Loans that bear interest at rates based
upon
the Base Rate.
BUSINESS DAY shall mean any day other than a day on which
commercial
banks are authorized or required to close in Texas, North Carolina
or New York
and, where such term is used in the definition of "QUARTERLY DATE"
or if such
day relates to a borrowing or continuation of, a payment or
prepayment of
principal of or interest on, or a conversion of or into, or the
Interest Period
for, a LIBOR Loan or a notice by the Borrower with respect to any
such borrowing
or continuation, payment, prepayment, conversion or Interest
Period, any day
which is also a day on which dealings in Dollar deposits are
carried out in the
London interbank market.
CHANGE IN CONTROL shall mean (i) except as permitted by CLAUSES
(III)(C) and (III)(D) hereof, any person or group of persons
(within the meaning
of Subsections 13(d) or 14(a) of the Securities Exchange Act of
1934, as
amended) shall have, at any time subsequent to the date hereof,
beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and
Exchange Commission under said Act) of 25% or more of the equity
securities of
such Person entitled to vote for members of the board of directors
or equivalent
governing body of such Person (and taking into account all such
securities that
such Person or group has the right to acquire pursuant to any
option right)
(provided however, that the beneficial ownership by Atlas or any
Subsidiary
thereof of 25% or more of the limited partnership interests of the
Borrower or
of the equity securities of General Partner shall not constitute a
Change in
Control); (ii) within a period of twelve (12) consecutive calendar
months,
individuals who were managing board members of the General Partner
on the first
day of such period shall cease to constitute a majority of the
managing board
members of the General Partner or individuals who were board
members of Atlas on
the first day of such period shall cease to constitute a majority
of the board
members of Atlas, or (iii) the occurrence of any of the
following:
3
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(a) the sale, transfer, lease, conveyance or other disposition
(other than by way of a permitted merger or consolidation), in one
or a
series of related transactions, of all or substantially all of
the
assets of the Borrower and its Wholly Owned Subsidiaries taken as
a
whole to any "person" (as such term is used in Section 13(d)(3) of
the
Securities Exchange Act of 1934, as amended);
(b) the adoption of a plan relating to the liquidation or
dissolution of the Borrower or the General Partner unless, in the
case
of the General Partner, the General Partner is replaced by an
affiliate
of Atlas acceptable to the Lenders in their reasonable discretion,
such
acceptance not to be unreasonably withheld;
(c) the General Partner ceases to own, directly or indirectly,
at least 51% of the general partner interests of the Borrower, or
the
General Partner ceases to serve as the only general partner of
the
Borrower unless, the General Partner is replaced by an affiliate
of
Atlas acceptable to the Lenders in their reasonable discretion,
such
acceptance not to be unreasonably withheld; or
(d) Atlas and/or one or more of its directly or indirectly
wholly-owned subsidiaries ceases to own at least 51% of the
membership
units of the General Partner.
CLOSING DATE shall mean the date upon which the conditions
precedent
for initial funding set forth in SECTION 6.01 are satisfied.
CODE shall mean the Internal Revenue Code of 1986, as amended from
time
to time and any successor statute.
COLLATERAL shall mean the Property owned by the Obligors and which
is
subject to the Liens existing and to exist under the terms of the
Security
Instruments.
COMMITMENT shall mean for any Lender, its Revolver Commitment.
CONSENT TO ASSIGNMENT shall mean, collectively, each Consent to
Assignment substantially in the form of EXHIBIT F hereto by and
between the
Borrower, each counterparty to a Material Agreement that requires
such
counterparty's consent to the pledge or assignment thereof in favor
of the
Administrative Agent, and the Administrative Agent.
CONSOLIDATED EBITDA OF THE BORROWER shall mean, for any period of
four
Fiscal Quarters, the sum of:
(a) the product of four (4) times the amount of cash
distributions
payable with respect to the last Fiscal Quarter in such period by
Atlas Pipeline
Partners to the Borrower in respect of the common partnership units
in Atlas
Pipeline Partners to the extent actually received on or prior to
the date the
financial statements with respect to such Fiscal Quarter referred
in the Section
9.14 are required to be delivered by the Borrower; provided that if
the Borrower
has acquired any common partnership units in Atlas Pipeline
Partners at any time
after the first day of such Fiscal Quarter, the determinations in
this clause
(a) shall be made giving pro forma effect to such acquisition as if
such
acquisition had occurred on the first day of the Fiscal Quarter;
plus
(b) the product of four (4) times the amount of cash
distributions
payable with respect to the last Fiscal Quarter in such period by
Atlas Pipeline
Partners to the Obligors in respect of the general partnership
interests or
incentive distribution rights to the extent actually received on or
prior to the
date the financial statements with respect to such Fiscal Quarter
referred in
the Section 9.14 are required to be delivered by the Borrower;
plus
4
<PAGE>
(c) Consolidated Net Income of the Borrower and its
Consolidated
Subsidiaries for such four Fiscal Quarter period, plus (i) each of
the following
to the extent deducted in determining such Consolidated Net Income
(A) all
Consolidated Interest Expense, (B) all income taxes (including any
franchise
taxes to the extent based upon net income), (C) all depreciation
and
amortization (including amortization of good will and debt issue
costs), and (D)
any other non-cash charges or losses, minus (ii) each of the
following (A) all
non-cash items of income or gain which were included in determining
such
Consolidated Net Income, and (B) any cash payments made during such
period in
respect of items described in clause (i)(D) of this clause (c)
subsequent to the
fiscal quarter in which the relevant non-cash charges or losses
were reflected
as a charge in the statement of Consolidated Net Income; provided
that the
determinations in this clause (c) shall be made excluding the
Unrestricted
Entities. For the avoidance of doubt, the determinations in this
clause (c)
shall not include Consolidated Net Income attributable to
distributions referred
to in clause (a) or (b) of this definition.
CONSOLIDATED FUNDED DEBT shall mean, for any Person and its
Consolidated Subsidiaries, the sum of the following (without
duplication): (i)
all obligations of such Person and its Consolidated Subsidiaries
for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments
(including principal, interest, fees and charges); (ii) all
obligations of such
Person and its Consolidated Subsidiaries (whether contingent or
otherwise) in
respect of bankers' acceptances, letters of credit, surety or other
bonds and
similar instruments; (iii) all obligations of such Person and its
Consolidated
Subsidiaries to pay the deferred purchase price of Property or
services (other
than for borrowed money); (iv) all obligations under leases which
shall have
been, or should have been, in accordance with GAAP, recorded as
capital leases
in respect of which such Person and its Consolidated Subsidiaries
is liable
(whether contingent or otherwise); (v) obligations to pay for goods
or services
whether or not such goods or services are actually received or
utilized by such
Person and its Consolidated Subsidiaries; (vi) any capital stock of
such Person
and its Consolidated Subsidiaries in which such Person has a
mandatory
obligation to redeem such stock; and (vii) all obligations of such
Person under
Hedging Agreements.
CONSOLIDATED INTEREST EXPENSE shall mean with respect to such
Person
and its Consolidated Subsidiaries, for any period, the aggregate
cash interest
payments made or required to be made for such Person and its
Consolidated
Subsidiaries on a consolidated basis for such period; provided,
that (i)
Consolidated Interest Expense for the fiscal quarter ending June
30, 2006 shall
be calculated by annualizing the Consolidated Interest Expense for
such fiscal
quarter, (ii) Consolidated Interest Expense for the fiscal quarter
ending
September 30, 2006 shall be calculated by annualizing the
Consolidated Interest
Expense for such fiscal quarter and the previous fiscal quarter,
and (iii)
Consolidated Interest Expense for the fiscal quarter ending
December 31, 2006
shall be calculated by annualizing the Consolidated Interest
Expense for such
fiscal quarter and the two (2) previous fiscal quarters.
CONSOLIDATED NET INCOME shall mean, for any Person and any period,
such
Person's and its Consolidated Subsidiaries' gross revenues for such
period,
minus such Person's and its Consolidated Subsidiaries' expenses and
other proper
charges against income (including taxes on income to the extent
imposed),
determined on a Consolidated basis after eliminating earnings or
losses
attributable to outstanding minority interests and excluding the
net earnings or
losses of any Person, other than a subsidiary of such Person, in
which such
Person or any of its subsidiaries has an ownership interest.
Consolidated Net
Income shall not include (a) any gain or loss from the sale of
assets other than
in the ordinary course of business, (b) any extraordinary gains or
losses, or
(c) any non-cash gains or losses resulting from mark to market
activity as a
result of SFAS 133. Consolidated Net Income of a Person for any
period shall
include any cash dividends and distributions actually received
during such
period from any Person, other than a subsidiary, in which such
Person or any of
its subsidiaries has an ownership interest.
5
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CONSOLIDATED SUBSIDIARIES shall mean each Subsidiary of a
Person
(whether now existing or hereafter created or acquired) the
financial statements
of which shall be (or should have been) consolidated with the
financial
statements of such Person in accordance with GAAP, provided,
however, that,
unless expressly specified otherwise, references to the
Consolidated
Subsidiaries of the Borrower shall not include the Unrestricted
Entities.
DEBT shall mean, for any Person the sum of the following
(without
duplication): (i) all obligations of such Person for borrowed money
or evidenced
by bonds, debentures, notes or other similar instruments (including
principal,
interest, fees and charges); (ii) all obligations of such Person
(whether
contingent or otherwise) in respect of bankers' acceptances,
letters of credit,
surety or other bonds and similar instruments; (iii) all
obligations of such
Person to pay the deferred purchase price of Property or services
(other than
for borrowed money); (iv) all obligations under leases which shall
have been, or
should have been, in accordance with GAAP, recorded as capital
leases in respect
of which such Person is liable (whether contingent or otherwise);
(v) all
obligations under operating leases which require such Person or its
Affiliate to
make payments over the term of such lease, including payments at
termination,
based on the purchase price or appraisal value of the Property
subject to such
lease plus a marginal interest rate, and used primarily as a
financing vehicle
for, or to monetize, such Property; (vi) all Debt (as described in
the other
clauses of this definition) and other obligations of others secured
by a Lien on
any asset of such Person, whether or not such Debt is assumed by
such Person;
(vii) all Debt (as described in the other clauses of this
definition) and other
obligations of others guaranteed by such Person or in which such
Person
otherwise assures a creditor against loss of the debtor or
obligations of
others; (viii) all obligations or undertakings of such Person to
maintain or
cause to be maintained the financial position or covenants of
others or to
purchase the Debt or Property of others; (ix) obligations to gather
or transport
Hydrocarbons in consideration of advance payments; (x) obligations
to pay for
goods or services whether or not such goods or services are
actually received or
utilized by such Person; (xi) any capital stock of such Person in
which such
Person has a mandatory obligation to redeem such stock; (xii) any
Debt of a
Subsidiary for which such Person is liable either by agreement or
because of a
Governmental Requirement; and (xiii) all obligations of such Person
under
Hedging Agreements.
DEFAULT shall mean an Event of Default or an event which with
notice or
lapse of applicable grace period or both would become an Event of
Default.
DEFAULTING LENDER shall mean any Lender that (i) has failed to fund
any
portion of the Loans or Letter of Credit reimbursement obligations
required to
be funded by it hereunder within one Business Day of the date
required to be
funded by it hereunder, (ii) has otherwise failed to pay over to
the
Administrative Agent or any other Lender any other amount required
to be paid by
it hereunder within one Business Day of the date when due, unless
the subject of
a good faith dispute, or (iii) has been deemed insolvent or become
the subject
of a bankruptcy or insolvency proceeding.
DISPOSITION or DISPOSE shall mean the sale, transfer or other
disposition (including any sale-leaseback transaction) of any
property by any
Person, other than the settlement or resolution of a claim that is
unrelated to
the collateral securing the Indebtedness.
DOLLARS and $ shall mean lawful money of the United States of
America.
6
<PAGE>
EFFECTIVE AMOUNT shall mean (i) with respect to any Loans on any
date,
the aggregate outstanding principal amount thereof after giving
effect to any
Loans and prepayments or repayments thereof occurring on such date
under the
Revolver Facility; and (ii) with respect to any outstanding LC
Exposure on any
date, the amount of such LC Exposure on such date after giving
effect to any
issuances of Letters of Credit occurring on such date and any other
changes in
the aggregate amount of the LC Exposure as of such date, including
as a result
of any reimbursements of drawings under any Letters of Credit or
any reductions
in the maximum amount available for drawing under Letters of Credit
taking
effect on such date.
ELIGIBLE ASSIGNEE shall mean (i) a Lender; (ii) an Affiliate of
a
Lender; (iii) an Approved Fund; and (iv) any other Person (other
than a natural
Person) approved by (a) the Administrative Agent and the Issuing
Bank, and (b)
unless a Default or Event of Default has occurred and is
continuing, the
Borrower (each such approval not to be unreasonably withheld or
delayed);
provided, that notwithstanding the foregoing, "Eligible Assignee"
shall not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
ENVIRONMENTAL LAWS shall mean any and all Governmental
Requirements
pertaining to health or the environment in effect in any and all
jurisdictions
in which any Obligor or any Subsidiary is conducting or at any time
has
conducted business, or where any Property of any Obligor or any
Subsidiary is
located, including without limitation, the Oil Pollution Act of
1990 ("OPA"),
the Clean Air Act, as amended, the Comprehensive Environmental,
Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the
Federal
Water Pollution Control Act, as amended, the Occupational Safety
and Health Act
of 1970, as amended, the Resource Conservation and Recovery Act of
1976
("RCRA"), as amended, the Safe Drinking Water Act, as amended, the
Toxic
Substances Control Act, as amended, the Superfund Amendments and
Reauthorization
Act of 1986, as amended, the Hazardous Materials Transportation
Act, as amended,
and other environmental conservation or protection laws. The term
"OIL" shall
have the meaning specified in OPA, the terms "HAZARDOUS SUBSTANCE"
and "RELEASE"
or "THREATENED RELEASE" have the meanings specified in CERCLA, and
the terms
"SOLID WASTE" and "DISPOSAL" or "DISPOSED" have the meanings
specified in RCRA;
provided, however, that (i) in the event either OPA, CERCLA or RCRA
is amended
so as to broaden the meaning of any term defined thereby, such
broader meaning
shall apply subsequent to the effective date of such amendment and
(ii) to the
extent the laws of the state in which any Property of any Obligor
or any
Subsidiary is located establish a meaning for "OIL," "HAZARDOUS
SUBSTANCE,"
"RELEASE," "SOLID WASTE" or "disposal" which is broader than that
specified in
either OPA, CERCLA or RCRA, such broader meaning shall apply.
ERISA shall mean the Employee Retirement Income Security Act of
1974,
as amended from time to time and any successor statute.
ERISA AFFILIATE shall mean each trade or business (whether or
not
incorporated) which together with the Borrower or any Subsidiary
would be deemed
to be a "SINGLE EMPLOYER" within the meaning of section 4001(b)(1)
of ERISA or
subsections (b), (c), (m) or (o) of section 414 of the Code.
ERISA EVENT shall mean (i) a "REPORTABLE EVENT" described in
Section
4043 of ERISA and the regulations issued thereunder, (ii) the
withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a Plan during
a plan year
in which it was a "SUBSTANTIAL EMPLOYER" as defined in Section
4001(a)(2) of
ERISA, (iii) the filing of a notice of intent to terminate a Plan
or the
treatment of a Plan amendment as a termination under Section 4041
of ERISA, (iv)
the institution of proceedings to terminate a Plan by the PBGC or
(v) any other
event or condition which might constitute grounds under Section
4042 of ERISA
for the termination of, or the appointment of a trustee to
administer, any Plan.
EVENT OF DEFAULT shall have the meaning assigned such term in
SECTION
10.01.
7
<PAGE>
EXCEPTED LIENS shall mean: (i) Liens for taxes, assessments or
other
governmental charges or levies not yet due or which are being
contested in good
faith by appropriate action and for which adequate reserves have
been
maintained; (ii) Liens in connection with worker's compensation,
unemployment
insurance or other social security, old age pension or public
liability
obligations not yet due or which are being contested in good faith
by
appropriate action and for which adequate reserves have been
maintained in
accordance with GAAP; (iii) vendors', carriers', warehousemen's,
repairmen's,
mechanics', workmen's, materialmen's, construction or other like
Liens arising
by operation of law in the ordinary course of business or statutory
landlord's
liens, each of which is in respect of obligations that have not
been outstanding
more than 90 days or which are being contested in good faith by
appropriate
proceedings and for which adequate reserves have been maintained in
accordance
with GAAP; and (iv) deposits of cash or securities to secure the
performance of
statutory obligations and other obligations of a like nature
incurred in the
ordinary course of business.
FACILITY shall mean the Revolver Facility.
FEDERAL FUNDS RATE shall mean, for any day, the rate per annum
(rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average
of the rates on overnight federal funds transactions with a member
of the
Federal Reserve System arranged by federal funds brokers on such
day, as
published by the Federal Reserve Bank of New York on the Business
Day next
succeeding such- day, provided, that (i) if the date for which such
rate is to
be determined is not a Business Day, the Federal Funds Rate for
such day shall
be such rate on such transactions on the next preceding Business
Day as so
published on the next succeeding Business Day, and (ii) if such
rate is not so
published for any day, the Federal Funds Rate for such day shall be
the average
rate charged to the Administrative Agent on such day on such
transactions as
determined by the Administrative Agent.
FEE LETTER shall mean that certain letter agreement from Wachovia
Bank,
National Association and Wachovia Capital Markets, LLC to the
Borrower dated
March 3, 2006, each concerning certain fees in connection with this
Agreement
and any agreements or instruments executed in connection therewith,
as the same
may be amended or replaced from time to time.
FINANCIAL STATEMENTS shall mean the financial statement or
statements
of the Borrower and its Consolidated Subsidiaries described or
referred to in
SECTION 7.02.
FOREIGN LENDER shall mean any Lender that is organized under the
laws
of a jurisdiction other than that in which the Borrower is resident
for tax
purposes. For purposes of this definition, the United States, each
State thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
FUND shall mean any Person (other than a natural person) that is
(or
will be) engaged in making, purchasing, holding or otherwise
investing in
commercial loans and similar extensions of credit in the ordinary
course of its
business.
GAAP shall mean generally accepted accounting principles in the
United
States of America in effect from time to time.
GENERAL PARTNER shall mean Atlas Pipeline Holdings GP, LLC, a
Delaware
limited liability company.
GOVERNMENTAL AUTHORITY shall include the country, the state,
county,
city and political subdivisions in which any Person or such
Person's Property is
located or which exercises valid jurisdiction over any such Person
or such
Person's Property, and any court, agency, department, commission,
board, bureau
or instrumentality of any of them including monetary authorities
which exercises
valid jurisdiction over any such Person or such Person's Property.
Unless
otherwise specified, all references to Governmental Authority
herein shall mean
a Governmental Authority having jurisdiction over, where
applicable, any Obligor
or any of their Property or the Administrative Agent, any Lender or
any
Applicable Lending Office.
8
<PAGE>
GOVERNMENTAL REQUIREMENT shall mean any law, statute, code,
ordinance,
order, determination, rule, regulation, judgment, decree,
injunction, franchise,
permit, certificate, license, authorization or other directive or
requirement
(whether or not having the force of law), including, without
limitation,
Environmental Laws, energy regulations and occupational, safety and
health
standards or controls, of any Governmental Authority.
GUARANTOR shall mean APL General Partner and each Subsidiary of
Borrower hereafter formed or acquired, except for the Unrestricted
Entities.
GUARANTY AGREEMENT shall mean, collectively, (i) an agreement
executed
by a Guarantor in form and substance satisfactory to the
Administrative Agent
guarantying, unconditionally, payment of the Indebtedness, together
with (ii)
any other amendment, modification, supplement, restatement,
ratification, or
reaffirmation of any Guaranty Agreement made in accordance with the
Loan
Documents.
HEDGING AGREEMENTS shall mean any commodity, interest rate or
currency
swap, cap, floor, collar, forward agreement or other exchange or
protection
agreements or any option with respect to any such transaction.
HIGHEST LAWFUL RATE shall mean, as of a particular date, the
highest
non-usurious rate of interest, if any, permitted from day to day by
applicable
law. To the extent Texas law is applicable, the Lenders hereby
notify and
disclose to the Borrower that, for purposes of Texas Finance Code
ss.303.001, as
it may from time to time be amended, the "applicable ceiling" shall
be the
"weekly ceiling" from time to time in effect as limited by Texas
Finance Code
ss.303.009; provided however, that to the extent permitted by
applicable law,
the Lender reserves the right to change the "applicable ceiling"
from time to
time by further notice and disclosure to the Borrower.
HYDROCARBONS shall mean oil, gas, casinghead gas, drip
gasoline,
natural gasoline, condensate, distillate, liquid hydrocarbons,
gaseous
hydrocarbons and all products refined or separated therefrom.
INDEBTEDNESS shall mean any and all amounts owing or to be owing by
the
Borrower or any other Obligor to the Administrative Agent, the
Issuing Bank
and/or the Lenders or any Affiliates of Lenders in connection with
the Loan
Documents now or hereafter arising between the Borrower or any
other Obligor and
the Administrative Agent, the Issuing Bank, any Lender or its
Affiliate and
permitted by the terms of this Agreement, and all renewals,
extensions and/or
rearrangements of any of the foregoing. INDEBTEDNESS shall also
include any
obligation owing to any Person under Hedging Agreements to the
extent such
Person was a Lender or Affiliate thereof when such Hedging
Agreement was
executed.
INDEMNIFIED PARTIES shall have the meaning assigned such term
in
SECTION 12.03(A)(II).
INITIAL FUNDING shall mean the funding of the initial Loans or
issuance
of the initial Letters of Credit upon satisfaction of the
conditions set forth
in SECTIONS 6.01 and 6.02.
INTERCOMPANY DEBT shall mean funded Debt that is owed by an Obligor
to
the Borrower or to any other Obligor, or by the Borrower or any
other Obligor to
another Obligor.
INTERCOMPANY NOTES shall mean the promissory notes executed to
evidence
the Intercompany Debt.
9
<PAGE>
INTEREST PERIOD shall mean, with respect to any LIBOR Loan, the
period
commencing on the date such LIBOR Loan is made and ending on the
numerically
corresponding day in the first, second, third or sixth calendar
month
thereafter, as the Borrower may select as provided in SECTION 2.02,
except that
each Interest Period which commences on the last Business Day of a
calendar
month (or on any day for which there is no numerically
corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the
appropriate subsequent calendar month. Notwithstanding the
foregoing: (i) no
Interest Period with respect to Loans may end after the Termination
Date in
respect of the Revolver Facility; (ii) no Interest Period for any
LIBOR Loan may
end after the due date of any installment, if any, provided for in
SECTION 3.01
to the extent that such LIBOR Loan would need to be prepaid prior
to the end of
such Interest Period in order for such installment to be paid when
due; (iii)
each Interest Period which would otherwise end on a day which is
not a Business
Day shall end on the next succeeding Business Day (or, if such next
succeeding
Business Day falls in the next succeeding calendar month, on the
next preceding
Business Day); and (iv) no Interest Period shall have a duration of
less than
one month and, if the Interest Period for any LIBOR Loans would
otherwise be for
a shorter period, such Loans shall not be available hereunder.
ISSUING BANK shall have the meaning assigned to such term in
the
introductory paragraph to this Agreement, or any other Lender
agreed to between
the Borrower and the Administrative Agent to issue Letters of
Credit.
LC
COMMITMENT at any time shall mean One Million Dollars
($1,000,000).
LC EXPOSURE at any time shall mean the sum of (i) the aggregate
amount
available to be drawn under all outstanding Letters of Credit plus
(ii) the
aggregate of all amounts drawn under all Letters of Credit and not
yet
reimbursed.
LETTER OF CREDIT AGREEMENTS shall mean the written agreements with
the
Issuing Bank, as issuing lender for any Letter of Credit, executed
in connection
with the issuance by the Issuing Bank of the Letters of Credit,
such agreements
to be on the Issuing Bank's customary form for letters of credit of
comparable
amount and purpose as from time to time in effect or as otherwise
agreed to by
the Borrower and the Issuing Bank.
LETTERS OF CREDIT shall mean the stand-by letters of credit
issued
pursuant to SECTION 2.01(B) and all reimbursement obligations
pertaining to any
such letters of credit, and "LETTER OF CREDIT" shall mean any one
of the Letters
of Credit and the reimbursement obligations pertaining thereto.
LEVERAGE RATIO has the meaning set forth in SECTION 9.15.
LIBOR shall mean the rate per annum (rounded upwards, if necessary,
to
the nearest 1/100 of 1%) of interest determined on the basis of the
rate for
deposits in Dollars for a period equal to the applicable Interest
Period
commencing on the first day of such Interest Period appearing on
Dow Jones
Market Service Page 3750 as of 11:00 a.m. (London time) two (2)
Business Days
prior to the first day of the applicable Interest Period. In the
event that such
rate does not appear on Dow Jones Market Service Page 3750, "LIBOR"
shall be
determined by the Administrative Agent to be the rate per annum
(rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which
deposits in Dollars
are offered by leading reference banks in the London interbank
market to the
Administrative Agent at approximately 11:00 a.m. (London time) two
Business Days
prior to the first day of the applicable Interest Period for a
period equal to
such Interest Period and in an amount substantially equal to the
amount of the
applicable Loan.
LIBOR LOANS shall mean Loans the interest rates on which are
determined
on the basis of rates referred to in the definition of "ADJUSTED
LIBOR".
10
<PAGE>
LIEN shall mean any interest in Property securing an obligation
owed
to, or a claim by, a Person other than the owner of the Property,
whether such
interest is based on the common law, statute or contract, and
whether such
obligation or claim is fixed or contingent, and including but not
limited to the
lien or security interest arising from a mortgage, encumbrance,
pledge, security
agreement, conditional sale or trust receipt or a lease,
consignment or bailment
for security purposes. The term "LIEN" shall include reservations,
exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions,
leases and other title exceptions and encumbrances affecting
Property. For the
purposes of this Agreement, each Obligor shall be deemed to be the
owner of any
Property which it has acquired or holds subject to a conditional
sale agreement,
or leases under a financing lease or other arrangement pursuant to
which title
to the Property has been retained by or vested in some other Person
in a
transaction intended to create a financing.
LIMITED PARTNERSHIP AGREEMENT shall mean that certain Amended
and
Restated Agreement of Limited Partnership of Borrower dated as of
_______, 20__,
as such agreement may be amended, extended, revised or replaced
from time to
time.
LOAN DOCUMENTS shall mean this Agreement, the Notes, the
Guaranty
Agreements, all Letters of Credit, all Letter of Credit Agreements,
the Fee
Letter, the Security Instruments, Hedging Agreements entered into
between
Borrower or any other Obligor and any Lender or Affiliate of any
Lender and the
Consent to Assignment.
LOANS shall mean the loans as provided for by SECTION 2.01(A) or
any
continuations or conversions thereof.
MARGIN REGULATIONS shall mean Regulations U, T, and X fo the Board
of
Governors of the Federal Reserve System of the United States
MATERIAL ADVERSE EFFECT shall mean any material and adverse effect
on
(i) the assets, liabilities, financial condition, business,
operations or
affairs of the Borrower and its Consolidated Subsidiaries, or Atlas
Pipeline
Partners and its Consolidated Subsidiaries, in each case taken as a
whole, or
(ii) the ability of the Borrower and its Consolidated Subsidiaries,
or Atlas
Pipeline Partners and its Consolidated Subsidiaries, in each case
taken as a
whole, to carry out their business as at the Closing Date, or (iii)
the ability
of any Obligor to meet its obligations under the Loan Documents on
a timely
basis, or (iv) the Administrative Agent's and the Lenders'
interests in the
collateral securing the Indebtedness, or the Administrative Agents'
or the
Lenders' ability to enforce their rights and remedies under this
Agreement or
any other Loan Document, at law or in equity.
MATERIAL AGREEMENTS shall have the meaning assigned to such term
in
SECTION 7.20.
MAXIMUM REVOLVER AMOUNT shall mean, as to each Lender, the
dollar
amount of such Lender's Percentage Share of the Revolver Facility
(as the same
may be reduced pursuant to SECTION 2.03(A) pro rata to each Lender
based on its
Percentage Share of the Revolver Facility), as modified from time
to time to
reflect any assignments permitted by SECTION 12.06(B).
MOODY'S shall mean Moody's Investor Service, Inc. and any
successor
thereto.
MULTIEMPLOYER PLAN shall mean a Plan defined as such in Section
3(37)
or 4001(a)(3) of ERISA.
NOARK shall mean NOARK Pipeline System, Limited Partnership, an
Arkansas limited partnership.
11
<PAGE>
NOARK FINANCE shall mean NOARK Pipeline Finance, L.L.C., an
Oklahoma
limited liability company, a wholly owned subsidiary of NOARK.
NOARK NOTES shall mean (i) the 7.15% Notes due 2018 issued by
NOARK
Finance pursuant to that certain Indenture dated as of June 1,
1998, between
NOARK Finance and The Bank of New York as trustee, and (ii) the
related Loan
Agreement dated as of June 1, 1998, between NOARK, as borrower, and
NOARK
Finance, as lender.
NOTES shall mean, collectively, the Revolver Notes provided for
by
SECTION 2.06, together with any and all renewals, extensions for
any period,
increases, rearrangements, substitutions or modifications
thereof.
OBLIGOR shall mean each Initial Obligor and each additional
Person
party to a Guaranty.
OTHER TAXES shall have the meaning assigned such term in
SECTION
4.06(B).
PARTICIPANT has the meaning set forth in SECTION 12.06.
PBGC shall mean the Pension Benefit Guaranty Corporation or any
entity
succeeding to any or all of its functions.
PERCENTAGE SHARE for each Lender shall mean on any date of
determination (i) for purposes of sharing any amount or fee payable
to any
Lender in respect of the Facility (or subfacility thereof), the
proportion that
the portion of the Principal Debt for the Facility (or subfacility
thereof) owed
to such Lender (whether held directly or through a participation in
respect of
the Letter of Credit subfacility and determined after giving effect
thereto)
bears to the Principal Debt under the Facility (or subfacility
thereof) owed to
all Lenders thereunder at the time in question, and (b) for all
other purposes,
the proportion that the portion of the Principal Debt owed to such
Lender bears
to the Principal Debt owed to all Lenders at the time in question,
or if no
Principal Debt is outstanding, then the proportion that the
aggregate of such
Lender's Commitment then in effect under the Facility bears to the
Revolver
Commitment then in effect.
PERMITTED ACQUISITION shall mean any acquisition made pursuant
to
SECTION 9.03(J).
PERMITTED LINE OF BUSINESS shall mean a line of business that is
(i) a
business of master limited partnerships and (ii) midstream energy
related,
including transporting, gathering, treating, processing,
terminaling, storage,
marketing of Hydrocarbons, other than as a producer or refiner.
PERMITTED MERGER shall mean such merger or consolidation as is
permitted under SECTION 9.09.
PERSON shall mean any individual, corporation, company,
voluntary
association, partnership, joint venture, trust, unincorporated
organization or
government or any agency, instrumentality or political subdivision
thereof, or
any other form of entity.
PLAN shall mean any employee pension benefit plan, as defined
in
Section 3(2) of ERISA, which (i) is currently or hereafter
sponsored, maintained
or contributed to by the Borrower, any Subsidiary or an ERISA
Affiliate or (ii)
was at any time during the preceding six calendar years sponsored,
maintained or
contributed to, by the Borrower, any Subsidiary or an ERISA
Affiliate.
PLEDGES shall have the meaning assigned to such term in SECTION
10.03(D).
12
<PAGE>
POST-DEFAULT RATE shall mean, in respect of (i) all amounts due
and
payable with respect to LIBOR Loans, a rate per annum equal to two
percent (2%)
per annum above the rate then applicable to such LIBOR Loans until
the end of
the applicable Interest Period and thereafter at a rate equal to
two percent
(2%) per annum above the rate then applicable to Base Rate Loans
and (ii) all
amounts due and payable with respect to Base Rate Loans and all
other
obligations arising under the Facility, a rate per annum equal to
two percent
(2%) per annum above the rate then applicable to Base Rate Loans,
provided in
each case that no Post-Default Rate charged by any person shall
ever exceed the
Highest Lawful Rate.
PRIME RATE shall mean the rate of interest from time to time
announced
publicly by the Administrative Agent as its prime commercial
lending rate. Such
rate is set by the Administrative Agent as a general reference rate
of interest,
taking into account such factors as the Administrative Agent may
deem
appropriate, it being understood that many of the Administrative
Agent's
commercial or other loans are priced in relation to such rate, that
it is not
necessarily the lowest or best rate actually charged to any
customer and that
the Administrative Agent may make various commercial or other loans
at rates of
interest having no relationship to such rate.
PRINCIPAL DEBT shall mean, on any date of determination, the
aggregate
unpaid principal balance of all Loans, together with the aggregate
unpaid
reimbursement obligations of Borrower in respect of drawings under
any Letter of
Credit.
PRINCIPAL OFFICE shall mean the principal office of the
Administrative
Agent, presently located at 1001 Fannin, Suite 2255, Houston, Texas
77002-6709.
PROPERTY shall mean any interest in any kind of property or
asset,
whether real, personal or mixed, moveable or immoveable, tangible
or intangible.
QUARTERLY DATE shall mean the first day of each January, April,
July,
and October in each year, the first of which shall be July, 2006;
provided,
however, that if any such day is not a Business Day, such Quarterly
Date shall
be the next succeeding Business Day.
QUARTERLY REPORTS shall have the meaning assigned to such term
under
Section 8.01(f).
REGISTER has the meaning set forth in SECTION 12.06.
REGULATION D shall mean Regulation D of the Board of Governors of
the
Federal Reserve System (or any successor), as the same may be
amended or
supplemented from time to time.
REGULATORY CHANGE shall mean, with respect to any Lender, any
change
after the Closing Date in any Governmental Requirement (including
Regulation D)
or the adoption or making after such date of any interpretations,
directives or
requests applying to a class of lenders (including such Lender or
its Applicable
Lending Office) of or under any Governmental Requirement (whether
or not having
the force of law) by any Governmental Authority charged with the
interpretation
or administration thereof.
RELATED PARTIES shall mean, with respect to any Person, such
Person's
Affiliates and the partners, directors, officers, employees, agents
and advisors
of such Person and of such Person's Affiliates.
REQUIRED LENDERS shall mean Lenders holding (i) at least 66-2/3% of
the
aggregate Revolver Commitments, if no Default or Event of Default
exists, or
(ii) at least 66-2/3% of the outstanding Principal Debt, if a
Default or Event
of Default exists.
REQUIRED PAYMENT shall have the meaning assigned such term in
SECTION
4.04.
13
<PAGE>
RESERVE REQUIREMENT shall mean, for any Interest Period for any
LIBOR
Loan, the average maximum rate at which reserves (including any
marginal,
supplemental or emergency reserves) are required to be maintained
during such
Interest Period under Regulation D by member banks of the Federal
Reserve System
in New York City with deposits exceeding one billion Dollars
against
"EUROCURRENCY LIABILITIES" (as such term is used in Regulation D).
Without
limiting the effect of the foregoing, the Reserve Requirement shall
reflect any
other reserves required to be maintained by such member banks by
reason of any
Regulatory Change against (i) any category of liabilities which
includes
deposits by reference to which LIBOR is to be determined as
provided in the
definition of "LIBOR" or (ii) any category of extensions of credit
or other
assets which include a LIBOR Loan.
RESPONSIBLE OFFICER shall mean, as to any Person, the Chief
Executive
Officer, the President or any Vice President of such Person and,
with respect to
financial matters, the term "RESPONSIBLE OFFICER" shall include the
Chief
Financial Officer of such Person. Unless otherwise specified, all
references to
a Responsible Officer herein shall mean a Responsible Officer of
the General
Partner.
REVOLVER COMMITMENT shall mean, for any Lender, its obligation to
make
Loans as provided in SECTION 2.01(A) and participate in the
issuance of Letters
of Credit as provided in SECTION 2.01(B) up to such Lender's
Maximum Revolver
Amount (as the same may be decreased pursuant to SECTION
2.03(A)).
REVOLVER FACILITY shall mean the credit facility as described in
and
subject to the limitations set forth in SECTION 2.01(A) hereof (as
the same may
be decreased pursuant to SECTION 2.03(A)).
REVOLVER NOTE shall mean a promissory note in substantially the
form of
EXHIBIT A, and all renewals and extensions of all or any part
thereof.
S&P shall mean Standard & Poor's Ratings Services, a
division of the
McGraw-Hill Companies, Inc., and any successor thereto.
SEC shall mean the Securities and Exchange Commission or any
successor
Governmental Authority.
SECURITY INSTRUMENTS
shall mean the agreements or instruments described
or referred to in EXHIBIT D, and any and all other agreements or
instruments now
or hereafter executed and delivered by the Obligors or any other
Person (other
than participation or similar agreements between any Lender and any
other lender
or creditor with respect to any Indebtedness pursuant to this
Agreement) in
connection with, or as security for the payment or performance of,
the Notes,
the Guaranty Agreements, the Hedging Agreements constituting Loan
Documents,
this Agreement, or reimbursement obligations under the Letters of
Credit, as
such agreements may be amended, supplemented or restated from time
to time.
SPECIAL ENTITY shall mean any joint venture, limited liability
company
or partnership, general or limited partnership or any other type of
partnership
or company other than a corporation in which the Borrower or one or
more of its
other Subsidiaries is a member, owner, partner or joint venturer
and owns,
directly or indirectly, at least a majority of the equity of such
entity or
controls such entity, but excluding any tax partnerships that are
not classified
as partnerships under state law. For purposes of this definition,
any Person
which owns directly or indirectly an equity investment in another
Person which
allows the first Person to manage or elect managers who manage the
normal
activities of such second Person will be deemed to "CONTROL" such
second Person
(e.g. a sole general partner controls a limited partnership).
SUBORDINATED DEBT shall mean any Indebtedness for borrowed money
for
which an Obligor is directly and primarily obligated, so long as
such Debt (i)
does not have any stated maturity before the maturity of the
Facility, (ii) has
terms that are no more restrictive upon the Obligor than the terms
of the Loan
Documents, (iii) is subordinated, upon terms satisfactory to
Administrative
Agent, to the payment and collection of the Indebtedness, and (iv)
is unsecured.
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SUBSIDIARY shall mean (i) any corporation of which at least a
majority
of the outstanding shares of stock having by the terms thereof
ordinary voting
power to elect a majority of the board of directors of such
corporation
(irrespective of whether or not at the time stock of any other
class or classes
of such corporation shall have or might have voting power by reason
of the
happening of any contingency) is at the time directly or indirectly
owned or
controlled by the Borrower or one or more of its Subsidiaries or by
the Borrower
and one or more of its Subsidiaries and (ii) any Special Entity.
References to
Subsidiaries of the Borrower or any Obligor shall include the
Unrestricted
Entities.
TAXES shall have the meaning assigned such term in SECTION
4.06(A).
TERMINATION DATE shall mean (i) for purposes of the Revolver
Facility,
the earlier of (a) April 13, 2010, and (b) the effective date that
Lenders'
Revolver Commitments are otherwise canceled or terminated.
TYPE shall mean, with respect to any Loan, a Base Rate Loan or a
LIBOR
Loan.
UNRESTRICTED ENTITIES shall mean Atlas Pipeline Partners and
its
Subsidiaries and any other Subsidiaries of the Borrower designated
as
Unrestricted Entities by the Borrower and approved by Required
Lenders..
WACHOVIA shall mean Wachovia Bank, National Association.
WHOLLY OWNED SUBSIDIARY shall mean a Subsidiary for which all of
the
outstanding shares of stock or other equity of such entity is owned
directly or
indirectly by Borrower.
Section 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise
specified herein, all accounting terms used herein shall be
interpreted, all
determinations with respect to accounting matters hereunder shall
be made, and
all financial statements and certificates and reports as to
financial matters
required to be furnished to the Administrative Agent or the Lenders
hereunder
shall be prepared, in accordance with GAAP, applied on a basis
consistent with
the audited financial statements of the Borrower referred to in
SECTION 7.02
(except for changes concurred with by the Borrower's independent
public
accountants).
ARTICLE II
COMMITMENTS
Section 2.01 LOANS AND LETTERS OF CREDIT
(a) LOANS. Subject to and in reliance upon the terms,
conditions, representations and warranties in the Loan Documents,
each
Lender severally agrees to make Loans to the Borrower during the
period
from and including (i) the Closing Date or (ii) such later date
that
such Lender becomes a party to this Agreement as provided in
SECTION
12.06(B), to and up to, but excluding, the Termination Date in
respect
of the Revolver Facility in an aggregate principal amount at any
one
time outstanding up to, but not exceeding, the amount of such
Lender's
Revolver Commitment as then in effect; provided however, that
the
aggregate principal amount of all such Loans by all Lenders
hereunder
at any one time outstanding together with the LC Exposure shall
not
exceed the Aggregate Maximum Revolver Amount. Subject to the terms
of
this Agreement, during the period from the Closing Date to and up
to,
but excluding, the Termination Date in respect of the Revolver
Facility, the Borrower may borrow, repay and reborrow the
amount
described in this SECTION 2.01(A).
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(b) LETTERS OF CREDIT. During the period from and including
the Closing Date to, but excluding, five (5) Business Days prior to
the
Termination Date in respect of the Revolver Facility, the Issuing
Bank,
as issuing bank for the Lenders, agrees to extend credit for
the
account of any Obligor at any time and from time to time by
issuing,
renewing, extending or reissuing Letters of Credit; provided
however,
that the LC Exposure at any one time outstanding shall not exceed
the
lesser of (i) the LC Commitment or (ii) the Aggregate Maximum
Revolver
Amount, as then in effect, minus the aggregate principal amount of
all
Loans then outstanding. The Lenders shall participate in such
Letters
of Credit according to their respective Percentage Shares of
the
Revolver Facility. Each of the Letters of Credit shall (i) be
issued by
the Issuing Bank, (ii) contain such terms and provisions as are
reasonably required by the Issuing Bank, (iii) be for the account
of
such Obligor, and (iv) expire not later than the earlier of (A)
twelve
months from the date of issuance of such Letter of Credit and (B)
five
(5) Business Days before the Termination Date in respect of the
Revolver Facility.
(c) LIMITATION ON TYPES OF LOANS. Subject to the other terms
and provisions of this Agreement, at the option of the Borrower,
the
Loans may be Base Rate Loans or LIBOR Loans; provided that, without
the
prior written consent of the Required Lenders, no more than five
LIBOR
Loans may be outstanding at any time.
Section 2.02 BORROWINGS, CONTINUATIONS AND CONVERSIONS, LETTERS
OF
CREDIT.
(a) BORROWINGS. The Borrower shall give the Administrative
Agent (which shall promptly notify the Lenders) advance notice
as
hereinafter provided of each borrowing hereunder, which shall
specify
(i) the aggregate amount of such borrowing, (ii) the Type and (iii)
the
date (which shall be a Business Day) of the Loans, and (iv) (in
the
case of LIBOR Loans) the duration of the Interest Period
therefor.
(b) MINIMUM AMOUNTS. If a borrowing consists in whole or in
part of LIBOR Loans, such LIBOR Loans shall be in amounts of at
least
Three Million Dollars ($3,000,000) or any whole multiple of One
Million
Dollars ($1,000,000) in excess thereof. If a borrowing consists
in
whole or in part of Base Rate Loans, such Base Rate Loans shall be
in
amounts of at least Three Million Dollars ($3,000,000) or
integral
multiples of One Million Dollars ($1,000,000) in excess
thereof.
(c) NOTICES. All borrowings, continuations and conversions
shall require advance written notice to the Administrative Agent
(which
shall promptly notify the Lenders) in the form of EXHIBIT B (or
telephonic notice promptly confirmed by such a written notice),
which
in each case shall be irrevocable, from the Borrower to be received
by
the Administrative Agent not later than 11:00 a.m. Charlotte,
North
Carolina time at least one Business Day prior to the date of each
Base
Rate Loan borrowing and three Business Days prior to the date of
each
LIBOR Loan borrowing, continuation or conversion. Without in any
way
limiting the Borrower's obligation to confirm in writing any
telephonic
notice, the Administrative Agent may act without liability upon
the
basis of telephonic notice believed by the Administrative Agent in
good
faith to be from the Borrower prior to receipt of written
confirmation.
In each such case, the Borrower hereby waives the right to dispute
the
Administrative Agent's record of the terms of such telephonic
notice
except in the case of gross negligence or willful misconduct by
the
Administrative Agent.
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(d) CONTINUATION OPTIONS. Subject to the provisions made in
this SECTION 2.02(D), the Borrower may elect to continue all or
any
part of any LIBOR Loan beyond the expiration of the then
current
Interest Period relating thereto by giving advance notice as
provided
in SECTION 2.02(C) to the Administrative Agent (which shall
promptly
notify the Lenders) of such election, specifying the amount of
such
Loan to be continued and the Interest Period therefor. In the
absence
of such a timely and proper election, the Borrower shall be deemed
to
have elected to convert such LIBOR Loan to a Base Rate Loan
pursuant to
SECTION 2.02(E). All or any part of any LIBOR Loan may be continued
as
provided herein, provided that (i) any continuation of any such
Loan
shall be (as to each Loan as continued for an applicable
Interest
Period) in amounts of at least Three Million Dollars ($3,000,000)
or
any whole multiple of One Million Dollars ($1,000,000) in
excess
thereof and (ii) no Default shall have occurred and be continuing.
If a
Default shall have occurred and be continuing, each LIBOR Loan
shall be
converted to a Base Rate Loan on the last day of the Interest
Period
applicable thereto.
(e) CONVERSION OPTIONS. The Borrower may elect to convert all
or any part of any LIBOR Loan on the last day of the then
current
Interest Period relating thereto to a Base Rate Loan by giving
advance
notice to the Administrative Agent (which shall promptly notify
the
Lenders) of such election. Subject to the provisions made in
this
SECTION 2.02(E), the Borrower may elect to convert all or any part
of
any Base Rate Loan at any time and from time to time to a LIBOR
Loan by
giving advance notice as provided in SECTION 2.02(C) to the
Administrative Agent (which shall promptly notify the Lenders) of
such
election. All or any part of any outstanding Loan may be converted
as
provided herein, provided that (i) any conversion of any Base Rate
Loan
into a LIBOR Loan shall be (as to each such Loan into which there
is a
conversion for an applicable Interest Period) in amounts of at
least
Three Million Dollars ($3,000,000) or any whole multiple of One
Million
Dollars ($1,000,000) in excess thereof and (ii) no Default shall
have
occurred and be continuing. If a Default shall have occurred and
be
continuing, no Base Rate Loan may be converted into a LIBOR
Loan.
(f) ADVANCES. Not later than 12:00 p.m. Charlotte, North
Carolina time on the date specified for each the borrowing
hereunder,
each Lender shall make available the amount of the Loan to be made
by
it on such date to the Administrative Agent, to an account which
the
Administrative Agent shall specify, in immediately available funds,
for
the account of the Borrower. The amounts so received by the
Administrative Agent shall, subject to the terms and conditions of
this
Agreement, be made available to the Borrower by depositing the
same, in
immediately available funds, in an account of the Borrower,
designated
by the Borrower and maintained at the Principal Office, or in
such
other accounts designated by the Borrower.
(g) LETTERS OF CREDIT. The Borrower shall give the Issuing
Bank (which shall promptly notify the Lenders of such request and
their
Percentage Share of such Letter of Credit) advance notice to be
received by the Issuing Bank not later than 12:00 p.m. Charlotte,
North
Carolina time not less than three Business Days prior thereto of
each
request for the issuance, and at least ten Business Days prior to
the
date of the renewal or extension, of a Letter of Credit hereunder
which
request shall specify (i) the amount of such Letter of Credit, (ii)
the
date (which shall be a Business Day) such Letter of Credit is to
be
issued, renewed or extended, (iii) the duration thereof, (iv) the
name
and address of the beneficiary thereof, and (v) such other
information
as the Issuing Bank may reasonably request, all of which shall
be
reasonably satisfactory to the Issuing Bank. Subject to the terms
and
conditions of this Agreement, on the date specified for the
issuance,
renewal or extension of a Letter of Credit, the Administrative
Agent
shall issue, renew or extend such Letter of Credit to the
beneficiary
thereof.
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<PAGE>
In conjunction with the issuance of each Letter of Credit, the
Borrower
shall execute a Letter of Credit Agreement. In the event of any
conflict between
any provision of a Letter of Credit Agreement and this Agreement,
the Borrower,
the Issuing Bank, the Administrative Agent and the Lenders hereby
agree that the
provisions of this Agreement shall govern.
The Issuing Bank will send to the Borrower and each Lender,
immediately
upon issuance of any Letter of Credit, or an amendment thereto, a
true and
complete copy of such Letter of Credit, or such amendment
thereto.
Section 2.03 CHANGES OF COMMITMENTS.
(a) The Borrower shall have the right to terminate or to
reduce the amount of the Aggregate Maximum Revolver Amounts at
any
time, or from time to time, upon not less than thirty (30) days'
prior
notice to the Administrative Agent (who shall promptly notify
the
Lenders) of each such termination or reduction, which notice
shall
specify the effective date thereof and the amount of any such
reduction
(which shall not be less than Three Million Dollars ($3,000,000) or
any
whole multiple of One Million Dollars ($1,000,000) in excess
thereof,
and no more than an amount by which the Aggregate Maximum
Revolver
Amounts would be less than the aggregate outstanding principal
amount
of the Loans plus the LC Exposure) and shall be irrevocable and
effective only upon receipt by the Administrative Agent.
(b) The Aggregate Maximum Revolver Amounts, once terminated or
reduced, may not be reinstated.
Section 2.04 FEES.
(a)
COMMITMENT FEE. The Borrower shall pay to the
Administrative Agent for the account of each Lender a commitment
fee on
the daily average unused amount of the aggregate Revolver
Commitments,
up to, but excluding, the Termination Date in respect of the
Revolver
Facility at a rate per annum equal to 0.50%. Accrued commitment
fees
shall be payable quarterly in arrears on each Quarterly Date and on
the
Termination Date in respect of the Revolver Facility.
(b) LETTER OF CREDIT FEES.
(i) The Borrower agrees to pay the Administrative
Agent, for the account of each Lender, commissions for issuing
the Letters of Credit on the daily average outstanding of the
maximum liability of the Issuing Bank existing from time to
time under such Letter of Credit (calculated separately for
each Letter of Credit) at the rate per annum equal to the
Applicable Margin in effect from time to time for LIBOR Loans,
provided, that each Letter of Credit shall bear a minimum
commission of Five Hundred Dollars ($500) and further
provided, during any period commencing on the date of an Event
of Default until the same is paid in full or all Events of
Default are cured and waived, equal to the Post-Default Rate.
Each Letter of Credit shall be deemed to be outstanding up to
the full face amount of the Letter of Credit until the Issuing
Bank has received the canceled Letter of Credit or a written
cancellation of the Letter of Credit from the beneficiary of
such Letter of Credit in form and substance acceptable to the
Issuing Bank, or for any reductions in the amount of the
Letter of Credit (other than from a drawing), written
notification from the beneficiary of such Letter of Credit.
Such commissions are payable in advance at issuance of the
Letter of Credit for the first year thereof and thereafter,
quarterly in arrears on each Quarterly Date and upon
cancellation or expiration of each such Letter of Credit.
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<PAGE>
(ii) The Borrower agrees to pay the Administrative
Agent, for the account of the Issuing Bank, commissions for
issuing the Letters of Credit (calculated separately for each
Letter of Credit) equal to 0.125% of the face amount of each
Letter of Credit, payable upon issuance of such Letter of
Credit.
(iii) The Borrower shall pay to the Administrative
Agent, for the account of the Issuing Bank, other customery
fees assessed by the Issuing Bank in connection with the
administration of its Letters of Credit.
(c) FEE LETTER. The Borrower shall pay to Administrative Agent
and the Sole Lead Arranger for their respective accounts such
other
fees as are set forth in the Fee Letter on the dates specified
therein
to the extent not paid prior to the Closing Date.
Section 2.05 SEVERAL OBLIGATIONS. The failure of any Lender to make
any
Loan to be made by it or to provide funds for disbursements or
reimbursements
under Letters of Credit on the date specified therefor shall not
relieve any
other Lender of its obligation to make its Loan or provide funds on
such date,
but no Lender shall be responsible for the failure of any other
Lender to make a
Loan to be made by such other Lender or to provide funds to be
provided by such
other Lender.
Section 2.06 NOTES. The Loans made by each Lender shall be
evidenced by
a Revolver Note dated as of (i) the Closing Date or (ii) the
effective date of
an Assignment and Assumption, payable to the order of such Lender
in a principal
amount equal to its Maximum Revolver Amount as originally in effect
and
otherwise duly completed and such substitute Notes as required by
SECTION 12.06.
The date, amount, Type, interest rate and Interest Period of each
Loan made by
each Lender, and all payments made on account of the principal
thereof, shall be
recorded by such Lender on its books for its Note, and, prior to
any transfer
may be endorsed by such Lender on the schedule attached to such
Note or any
continuation thereof or on any separate record maintained by such
Lender.
Failure to make any such notation or to attach a schedule shall not
affect any
Lender's or the Borrower's rights or obligations in respect of such
Loans or
affect the validity of such transfer by any Lender of its Note.
Section 2.07 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may prepay the Base
Rate Loans upon not less than one (1) Business Day's prior notice
to
the Administrative Agent (which shall promptly notify the
Lenders),
which notice shall specify the prepayment date (which shall be
a
Business Day) and the amount of the prepayment (which shall be at
least
One Hundred Thousand Dollars ($100,000) or the remaining
aggregate
principal balance outstanding on the Notes) and shall be
irrevocable
and effective only upon receipt by the Administrative Agent,
provided
that interest on the principal prepaid, accrued to the prepayment
date,
shall be paid on the prepayment date. The Borrower may prepay
LIBOR
Loans on the same conditions as for Base Rate Loans (except that
prior
notice to the Administrative Agent shall be not less than three
(3)
Business Days for LIBOR Loans) and in addition such prepayments
of
LIBOR Loans shall be subject to the terms of SECTION 5.05 and shall
be
in an amount equal to all of the LIBOR Loans for the Interest
Period
prepaid. In the event of a voluntary prepayment of any Loans
pursuant
to this SECTION 2.07(A), Borrower shall be entitled to reborrow
such
amounts pursuant to SECTION 2.01(A).
(b)
GENERALLY. Prepayments permitted under this SECTION 2.07
shall be without premium or penalty, except as required under
SECTION
5.05 for prepayment of LIBOR Loans. With respect to the Loans,
any
voluntary prepayments may be reborrowed subject to the then
effective
Aggregate Maximum Revolver Amount.
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Section 2.08 ASSUMPTION OF RISKS. The Borrower assumes all risks of
the
acts or omissions of any beneficiary of any Letter of Credit or any
transferee
thereof with respect to its use of such Letter of Credit. Neither
the Issuing
Bank (except in the case of gross negligence or willful misconduct
on the part
of the Issuing Bank or any of its employees), its correspondents
nor any Lender
shall be responsible for the validity, sufficiency or genuineness
of
certificates or other documents or any endorsements thereon, even
if such
certificates or other documents should in fact prove to be
invalid,
insufficient, fraudulent or forged; for errors, omissions,
interruptions or
delays in transmissions or delivery of any messages by mail, telex,
or
otherwise, whether or not they be in code; for errors in
translation or for
errors in interpretation of technical terms; the validity or
sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in
whole or in part, which may prove to be invalid or ineffective for
any reason;
the failure of any beneficiary or any transferee of any Letter of
Credit to
comply fully with conditions required in order to draw upon any
Letter of
Credit; or for any other consequences arising from causes beyond
the Issuing
Bank's control or the control of the Issuing Bank's correspondents.
In addition,
neither the Issuing Bank, the Administrative Agent nor any Lender
shall be
responsible for any error, neglect, or default of any of the
Issuing Bank's
correspondents; and none of the above shall affect, impair or
prevent the
vesting of any of the Issuing Bank's, the Administrative Agent's or
any Lender's
rights or powers hereunder or under the Letter of Credit
Agreements, all of
which rights shall be cumulative. The Issuing Bank and its
correspondents may
accept certificates or other documents that appear on their face to
be in order,
without responsibility for further investigation of any matter
contained therein
regardless of any notice or information to the contrary. In
furtherance and not
in limitation of the foregoing provisions, the Borrower agrees that
any action,
inaction or omission taken or not taken by the Issuing Bank or by
any
correspondent for the Issuing Bank in good faith in connection with
any Letter
of Credit, or any related drafts, certificates, documents or
instruments, shall
be binding on the Borrower and shall not put the Issuing Bank or
its
correspondents under any resulting liability to the Borrower.
Section 2.09 OBLIGATION TO REIMBURSE AND TO PREPAY.
(a) If a disbursement by the Issuing Bank is made under any
Letter of Credit, the Borrower shall pay to the Administrative
Agent
within two (2) Business Days after notice of any such disbursement
is
received by the Borrower, the amount of each such disbursement made
by
the Issuing Bank under the Letter of Credit (if such payment is
not
sooner effected as may be required under this SECTION 2.09 or
under
other provisions of the Letter of Credit), together with interest
on
the amount disbursed from and including the date of disbursement
until
payment in full of such disbursed amount at a varying rate per
annum
equal to (i) the then applicable interest rate for Base Rate
Loans
through the second Business Day after notice of such disbursement
is
received by the Borrower and (ii) thereafter, the Post-Default Rate
for
Base Rate Loans (but in no event to exceed the Highest Lawful Rate)
for
the period from and including the third Business Day following the
date
of such disbursement to and including the date of repayment in full
of
such disbursed amount. The obligations of the Borrower under
this
Agreement with respect to each Letter of Credit shall be
absolute,
unconditional and irrevocable and shall be paid or performed
strictly
in accordance with the terms of this Agreement under all
circumstances
whatsoever, including, without limitation, but only to the
fullest
extent permitted by applicable law, the following circumstances:
(i)
any lack of validity or enforceability of this Agreement, any
Letter of
Credit or any of the Security Instruments; (ii) any amendment or
waiver
of (including any default), or any consent to departure from
this
Agreement (except to the extent permitted by any amendment or
waiver),
any Letter of Credit or any of the Security Instruments; (iii)
the
existence of any claim, set-off, defense or other rights which
the
Borrower may have at any time against the beneficiary of any Letter
of
Credit or any transferee of any Letter of Credit (or any Persons
for
whom any such beneficiary or any such transferee may be acting),
the
Issuing Bank, the Administrative Agent, any Lender or any other
Person,
whether in connection with this Agreement, any Letter of Credit,
the
Security Instruments, the transactions contemplated hereby or
any
unrelated transaction; (iv) any statement, certificate, draft,
notice
or any other document presented under any Letter of Credit proves
to
have been forged, fraudulent, insufficient or invalid in any
respect or
any statement therein proves to have been untrue or inaccurate in
any
respect whatsoever; (v) payment by the Issuing Bank under any
Letter of
Credit against presentation of a draft certificate which appears on
its
face to comply, but does not comply, with the terms of such Letter
of
Credit; and (vi) any other circumstance or happening
whatsoever,
whether or not similar to any of the foregoing.
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Notwithstanding anything in this Agreement to the contrary, the
Borrower will not be liable for payment or performance that
results
from the gross negligence or willful misconduct of the Issuing
Bank,
except (i) where the Borrower or any Subsidiary actually recovers
the
proceeds for itself or the Issuing Bank of any payment made by
the
Issuing Bank in connection with such gross negligence or
willful
misconduct or (ii) in cases where the Administrative Agent
makes
payment to the named beneficiary of a Letter of Credit.
(b) In the event of the occurrence of any Event of Default or
the maturity of the Revolver Notes, whether by acceleration or
otherwise, an amount equal to the LC Exposure shall be deemed to
be
forthwith due and owing by the Borrower to the Issuing Bank,
the
Administrative Agent and the Lenders as of the date of any such
occurrence; and the Borrower's obligation to pay such amount shall
be
absolute and unconditional, without regard to whether any
beneficiary
of any such Letter of Credit has attempted to draw down all or
a
portion of such amount under the terms of a Letter of Credit, and,
to
the fullest extent permitted by applicable law, shall not be
subject to
any defense or be affected by a right of set-off, counterclaim
or
recoupment which the Borrower may now or hereafter have against
any
such beneficiary, the Issuing Bank, the Administrative Agent,
the
Lenders or any other Person for any reason whatsoever. Such
payments
shall be held by the Issuing Bank on behalf of the Lenders as
cash
collateral securing the LC Exposure in an account or accounts at
the
Principal Office; and the Borrower hereby grants to and by its
deposit
with the Administrative Agent grants to the Administrative Agent
a
security interest in such cash collateral. In the event of any
such
payment by the Borrower of amounts contingently owing under
outstanding
Letters of Credit and in the event that thereafter drafts or
other
demands for payment complying with the terms of such Letters of
Credit
are not made prior to the respective expiration dates thereof,
the
Administrative Agent agrees, if no Event of Default has occurred
and is
continuing or if no other amounts are outstanding under this
Agreement,
the Notes or the Security Instruments, to remit to the Borrower
amounts
for which the contingent obligations evidenced by the Letters of
Credit
have ceased.
(c) Each Lender severally and unconditionally agrees that it
shall promptly reimburse the Issuing Bank an amount equal to
such
Lender's Percentage Share of any disbursement made by the Issuing
Bank
under any Letter of Credit that is not reimbursed according to
this
SECTION 2.09.
(d) Notwithstanding anything to the contrary contained herein,
if no Event of Default has occurred and is continuing, and subject
to
Availability under the Revolver Facility, to the extent the
Borrower
has not reimbursed the Issuing Bank for any drawn upon Letter of
Credit
within one (1) Business Day after notice of such disbursement has
been
received by the Borrower, the amount of such Letter of Credit
reimbursement obligation shall automatically be funded by the
Lenders
as a Loan
hereunder and used by the Lenders to pay such Letter of
Credit reimbursement obligation. If an Event of Default has
occurred
and is continuing, or if the funding of such Letter of Credit
reimbursement obligation as a Loan would cause the aggregate amount
of
all Loans outstanding to exceed the Aggregate Maximum Revolver
Amount
(after reduction for LC Exposure), such Letter of Credit
reimbursement
obligation shall not be funded as a Loan, but instead shall
accrue
interest as provided in SECTION 2.09(A).
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Section 2.10 LENDING OFFICES. The Loans of each Type made by
each
Lender shall be made and maintained at such Lender's Applicable
Lending Office
for Loans of such Type.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 REPAYMENT OF LOANS.
(a) LOANS. The Principal Debt is due and payable on the
Termination Date in respect of the Revolver Facility.
(b) GENERALLY. The Borrower will pay to the Administrative
Agent, for the account of each Lender, the principal payments
required
by this SECTION 3.01.
Section 3.02 INTEREST.
(a) INTEREST RATES. The Borrower will pay to the
Administrative Agent, for the account of each Lender, interest on
the
unpaid principal amount of each Loan made by such Lender for the
period
commencing on the date such Loan is made to, but excluding, the
date
such Loan shall be paid in full, at the following rates per
annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate
(as in effect from time to time) plus the Applicable Margin,
but in no event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each
Interest Period relating thereto, the Adjusted LIBOR for such
Loan plus the Applicable Margin (as in effect from time to
time), but in no event to exceed the Highest Lawful Rate.
(b) POST-DEFAULT RATE. Notwithstanding the foregoing, the
Borrower will pay to the Administrative Agent, for the account of
each
Lender, interest at the applicable Post-Default Rate on any Loan
made
by such Lender, and (to the fullest extent permitted by law) on
any
other amount payable by the Borrower hereunder, under any Loan
Document
or under any Note held by such Lender to or for account of such
Lender,
for the period commencing on the date of an Event of Default until
the
same is paid in full or all Events of Default are cured or
waived.
(c) DUE DATES. Accrued interest on Base Rate Loans shall be
payable on each Quarterly Date commencing on July 1, 2006, and
accrued
interest on each LIBOR Loan shall be payable on the last day of
the
Interest Period therefor and, if such Interest Period is longer
than
three months, at three-month intervals following the first day of
such
Interest Period, except that interest payable at the Post-Default
Rate
shall be payable from time to time on demand and interest on any
LIBOR
Loan that is converted into a Base Rate Loan (pursuant to SECTION
5.04)
shall be payable on the date of conversion (but only to the extent
so
converted). Any accrued and unpaid interest on the Loans on the
Termination Date in respect of the Revolver Facility shall be paid
on
such date.
(d) DETERMINATION OF RATES. Promptly after the determination
of any interest rate provided for herein or any change therein,
the
Administrative Agent shall notify the Lenders to which such
interest is
payable and the Borrower thereof. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall,
except
in cases of manifest error, be final, conclusive and binding on
the
parties.
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<PAGE>
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 PAYMENTS. Except to the extent otherwise provided
herein,
all payments of principal, interest and other amounts to be made by
the Borrower
under this Agreement, the Notes, Letters of Credit, and the Letter
of Credit
Agreements shall be made in Dollars, in immediately available
funds, to the
Administrative Agent at such account as the Administrative Agent
shall specify
by notice to the Borrower from time to time, not later than 12:00
p.m.
Charlotte, North Carolina time on the date on which such payments
shall become
due (each such payment made after such time on such due date to be
deemed to
have been made on the next succeeding Business Day). Such payments
shall be made
without (to the fullest extent permitted by applicable law)
defense, set-off or
counterclaim. Each payment received by the Administrative Agent
under this
Agreement or any Note for account of a Lender shall be paid
promptly to such
Lender in immediately available funds. Except as otherwise provided
in the
definition of "Interest Period", if the due date of any payment
under this
Agreement or any Note would otherwise fall on a day which is not a
Business Day
such date shall be extended to the next succeeding Business Day and
interest
shall be payable for any principal so extended for the period of
such extension.
At the time of each payment to the Administrative Agent of any
principal of or
interest on any borrowing, the Borrower shall notify the
Administrative Agent of
the Loans to which such payment shall apply. In the absence of such
notice the
Administrative Agent may specify the Loans to which such payment
shall apply,
but to the extent possible such payment or prepayment will be
applied first to
the Loans comprised of Base Rate Loans.
Section 4.02 PRO RATA TREATMENT. Except to the extent otherwise
provided herein, each Lender agrees that: (i) each borrowing from
the Lenders
under SECTION 2.01 and each continuation and conversion under
SECTION 2.02 shall
be made from the Lenders pro rata in accordance with their
Percentage Share of
the aggregate Revolver Commitments, each payment of fees under
SECTIONS 2.04(A)
and 2.04(B)(I), shall be made for account of the Lenders pro rata
in accordance
with their Percentage Share of the aggregate Revolver Commitments,
and each
termination or reduction of the amount of the Aggregate Maximum
Revolver Amount
under SECTION 2.03(A) shall be applied to the Revolver Commitment
of each
Lender, pro rata according to the amounts of its respective
Revolver Commitment;
(ii) each payment of principal of Loans by the Borrower shall be
made for
account of the Lenders pro rata in accordance with the respective
unpaid
principal amount of the Loans held by the Lenders; (iii) each
payment of
interest on Loans by the Borrower shall be made for account of the
Lenders pro
rata in accordance with the amounts of interest due and payable to
the
respective Lenders; (iv) each reimbursement by the Borrower of
disbursements
under Letters of Credit shall be made for account of the Issuing
Bank or, if
funded by the Lenders, pro rata for the account of the Lenders in
accordance
with the amounts of reimbursement obligations due and payable to
each respective
Lender.
Section 4.03 COMPUTATIONS. Interest on LIBOR Loans and fees shall
be
computed on the basis of a year of 360 days and actual days elapsed
(including
the first day but excluding the last day) occurring in the period
for which such
interest is payable, unless such calculation would exceed the
Highest Lawful
Rate, in which case interest shall be calculated on the per annum
basis of a
year of 365 or 366 days, as the case may be. Interest on Base Rate
Loans shall
be computed on the basis of a year of 365 or 366 days, as the case
may be, and
actual days elapsed (including the first day but excluding the last
day)
occurring in the period for which such interest is payable.
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<PAGE>
Section 4.04 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless
the Administrative Agent shall have been notified by a Lender or
the Borrower
prior to the date on which such notifying party is scheduled to
make payment to
the Administrative Agent (in the case of a Lender) of the proceeds
of a Loan or
a payment under a Letter of Credit to be made by it hereunder or
(in the case of
the Borrower) a payment to the Administrative Agent for account of
one or more
of the Lenders hereunder (such payment being herein called the
"REQUIRED
Payment"), which notice shall be effective upon receipt, that it
does not intend
to make the Required Payment to the Administrative Agent, the
Administrative
Agent may assume that the Required Payment has been made and may,
in reliance
upon such assumption (but shall not be required to), make the
amount thereof
available to the intended recipient(s) on such date and, if such
Lender or the
Borrower (as the case may be) has not in fact made the Required
Payment to the
Administrative Agent, the recipient(s) of such payment shall, on
demand, repay
to the Administrative Agent the amount so made available together
with interest
thereon in respect of each day during the period commencing on the
date such
amount was so made available by the Administrative Agent until, but
excluding,
the date the Administrative Agent recovers such amount at a rate
per annum
which, for any Lender as recipient, will be equal to the Federal
Funds Rate, and
for the Borrower as recipient, will be equal to the Base Rate plus
the
Applicable Margin.
Section 4.05 SET-OFF, SHARING OF PAYMENTS, ETC.
(a) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim
a
Lender may otherwise have, each Lender shall have the right and
be
entitled (after consultation with the Administrative Agent), at
its
option, to offset balances held by it or by any of its Affiliates
for
account of the Borrower or any Subsidiary at any of its offices,
in
Dollars or in any other currency, against any principal of or
interest
on any of such Lender's Loans, or any other amount payable to
such
Lender hereunder, which is not paid when due (regardless of
whether
such balances are then due to the Borrower), in which case it
shall
promptly notify the Borrower and the Administrative Agent
thereof,
provided that such Lender's failure to give such notice shall
not
affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of or
interest on any Loan made by it to the Borrower under this
Agreement
(or reimbursement as to any Letter of Credit) through the exercise
of
any right of set-off, banker's lien or counterclaim or similar
right or
otherwise, and, as a result of such payment, such Lender shall
have
received a greater percentage of the principal or interest (or
reimbursement) then due hereunder by the Borrower to such Lender
than
the percentage received by any other Lenders, it shall promptly
(i)
notify the Administrative Agent and each other Lender thereof and
(ii)
purchase from such other Lenders participations in (or, if and to
the
extent specified by such Lender, direct interests in) the Loans
(or
participations in Letters of Credit) made by such other Lenders (or
in
interest due thereon, as the case may be) in such amounts, and
make
such other adjustments from time to time as shall be equitable, to
the
end that all the Lenders shall share the benefit of such excess
payment
(net of any expenses which may be incurred by such Lender in
obtaining
or preserving such excess payment) pro rata in accordance with
the
unpaid principal and/or interest on the Loans held by each of
the
Lenders (or reimbursements of Letters of Credit). To such end all
the
Lenders shall make appropriate adjustments among themselves (by
the
resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. The Borrower agrees that
any
Lender so purchasing a participation (or direct interest) in the
Loans
made by other Lenders (or in interest due thereon, as the case may
be)
may exercise all rights of set-off, banker's lien, counterclaim
or
similar rights with respect to such participation as fully as if
such
Lender were a direct holder of Loans (or Letters of Credit) in
the
amount of such participation. Nothing contained herein shall
require
any Lender to exercise any such right or shall affect the right of
any
Lender to exercise, and retain the benefits of exercising, any
such
right with respect to any other indebtedness or obligation of
the
Borrower. If under any applicable bankruptcy, insolvency or
other
similar law, any Lender receives a secured claim in lieu of a
set-off
to which this SECTION 4.05 applies, such Lender shall, to the
extent
practicable, exercise its rights in respect of such secured claim
in a
manner consistent with the rights of the Lenders entitled under
this
SECTION 4.05 to share the benefits of any recovery on such
secured
claim.
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<PAGE>
Section 4.06 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the
Borrower hereunder shall be made, in accordance with SECTION 4.01,
free
and clear of and without deduction for any and all present or
future
taxes, levies, imposts, deductions, charges or withholdings, and
all
liabilities with respect thereto, excluding, in the case of
each
Lender, the Issuing Bank and the Administrative Agent, taxes
imposed on
its income, and franchise or similar taxes imposed on it, by (i)
any
jurisdiction (or political subdivision thereof) of which the
Administrative Agent, the Issuing Bank or such Lender, as the case
may
be, is a citizen or resident or in which such Lender has an
Applicable
Lending Office, (ii) the jurisdiction (or any political
subdivision
thereof) in which the Administrative Agent, the Issuing Bank or
such
Lender is organized, or (iii) any jurisdiction (or political
subdivision thereof) in which such Lender, the Issuing Ba
